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C O N F I D E N T I A L SECTION 01 OF 04 SARAJEVO 000747
SIPDIS
SIPDIS
EUR (DICARLO), EUR/SCE (HOH, FOOKS, STINCHCOMB), EUR/ACE
(TEFT, DUNN, BORIS, KEETON), S/WCI (WILLIAMSON, LAVINE),
INR; NSC (BRAUN); OSD FOR BEIN; DOJ PASS TO OPDAT
(ALEXANDRE); THE HAGUE FOR SCHILDGE, MANNING
E.O. 12958: DECL: 04/07/2018
TAGS: PGOVPRELPINRKJUSKAWCEFINEIDEUBK
SUBJECT: BONSIA - DODIK INTENSIFIES ATACKS ON STATE-LEVEL
JUDICIAL REFORMS
REF: A.07 SARAJEVO 2294
¶B. 07 SARAJEVO 2682
¶C. 07 SARAJEVO 2555
¶D. 07 SARAJEVO 2519
lassified By: Ambassador Charles English. Reason 1.4 (B) and (D)
¶1. (C) SUMMARY: Since the beginning of 2008, Republika Srpska
(RS) Prime Minister Milorad Dodik, as part of his wider
campaign to undermine the state, has intensified his campaign
to challenge state-level judicial institutions. The primary
focus of his attacks has been the High Judicial and
Prosecutorial Council (HJPC). The HJPC is credited with
ensuring that the appointment and disciplining of judges and
prosecutors in Bosnia is free from political interference and
with ensuring the application of uniform appointment and
discipline standards throughout Bosnia. Dodik now demands
that the state return this competency to the entities and has
threatened to establish a Republika Srpska (RS) HJPC. Dodik
has also lashed out at the State Prosecutor's Office and the
State Court, accusing them of bias against Serbs and
inefficiency, claiming that the establishment of these
institutions and other judicial reforms were "completely
unsuccessful." Dodik has regularly attacked the
international presence within state-level judicial
institutions, including Bosnia's Constitutional Court, and
demanded their departure. Two of five Peace Implementation
Council's (PIC) objectives touch upon judicial issues, and RS
officials have already signaled that they will resist their
meaningful implementation. Over the next several months,
robust international engagement in the justice sector will be
required to ensure that these benchmarks are implemented in
manner consistent with our goal of entrenching reform and to
protect state-level judicial institutions from attacks by
Dodik and the RS government. END SUMMARY
Dodik Targets the HJPC
----------------------
¶2. (C) Since the beginning of the year, RS PM Dodik has
intensified his campaign to undercut state level judicial
institutions, particularly the HJPC. Created in 2004, the
HJPC is responsible for appointing, evaluating, and
disciplining state level judges and prosecutors, improving
professional standards and training requirements and
initiating and overseeing the administration of the courts
and prosecutors' offices. The American Bar Association's
Central European and Eurasian Law Initiative characterized
the HJPC's establishment as "perhaps the greatest
achievement" of Bosnian judicial reforms. Among other
things, the HJPC has enabled the appointment and disciplining
of judges to be conducted without political interference.
(Note: This was one reason why RS officials resisted
transferring competency for the HJPC from the entities to the
state in 2004. End Note) Dodik's challenges to the HJPC began
soon after became RS PM when in June 2006 when he tried to
bypass the HJPC and directly appoint an RS Special Prosecutor.
¶3. (C) In August 2007, Dodik and other RS officials
significantly stepped up their attacks on the transfer of
competencies from the entities to the state. Over a period
of several months, they claimed that
-- Fifty-three competencies had been transferred to the state
illegally (Note: Only four competencies have actually been
transferred to the state. Fifty-three refers to the number of
state-level institutions, which includes Dayton-created
bodies such as the Presidency and Parliament, and bodies
established to implement state-level competencies provided
for in Dayton, such as State Border Police and the Foreigners
Affairs Service. End Note);
-- competency transfers had failed to produce promised
benefits to the RS (i.e., Dodik referred to reforms as a
"complete swindle"); and,
-- the RS would reclaim competencies from the state,
including the HJPC.
RS officials have repeatedly attacked the HJPC's integrity
SARAJEVO 00000747 002 OF 004
and efficiency; Dodik called the HJPC "completely
ridiculous." Finally, RS officials have called for the
creation of an RS HJPC; Dodik did so as again at an April 15
meeting with EU Heads of Mission. These private comments
followed a public claim by the RS Minister of Justice that
the HJPC transfer of competency to the state was no longer
valid because the state had not located the HJPC in East
Sarajevo as it allegedly promised.
Attacking the State Prosecutor's Office and State Court
--------------------------------------------- ----------
¶4. (C) Dodik's and RS government officials' attacks on
state-level judicial institutions have not been limited to
the HJPC. They have also sought to undermine the authority
of the State Prosecutor's Office and the State Court.
Dodik's attacks on these institutions have generally combined
populism and with Serb nationalism by accusing state-level
institutions of inefficiency while at the same time pursuing
politically-motivated prosecutions against Serbs. For
example, Dodik has falsely asserted that state officials have
blocked a 2006 criminal report against BiH Army's Fifth Corps
Commander Atif Dudakovic for war crimes committed against
Serbs while indictments of RS police officers involved in the
Srebrenica massacre require "only a day, under pressure from
(the Federation) and Sarajevo media." Finally, RS officials
have cleverly sought to blur the distinction between the
performance of state-level judicial institutions and
entity-level judicial institutions by attributing problems
within entity judicial systems (e.g., case backlogs; problems
with enforcement of judicial decisions; political pressure
from entity politicians on entity prosecutors and judges) to
the state-level reforms supported by OHR and the
international community.
Dodik to Foreigners: Leave
--------------------------
¶5. (C) In the wake of crisis over the HighRep's October 19
impositions, Dodik's Alliance of Independent Social Democrats
(SNSD) announced a fifteen point plan which, among other
measures, called for the departure of internationals working
in state-level institutions. A primary focus for SNSD is the
departure of international secondees at the State Court and
the State Prosecutor's Office. The secondees have been part
a key part of efforts to bolster Bosnia's state-level
judicial institutions (Refs B and C), but have faced
consistent RS opposition due to their effectiveness in
prosecuting war crimes and politically sensitive cases,
including corruption charges against Serb politicians, such
as Party for Democratic Progress leader Mladen Ivanic.
Dodik, his surrogates in the press, and other RS officials
are aware that international prosecutors and judges at the
State Court have helped build the institution's capacity and
provided political cover for locals prepared to tackle the
country's most egregious war crimes, organized crime, and
corruption cases. Dodik is also likely aware that complaints
against him for corruption have been filed with the State
Prosecutor's Office. The internationals' departure would
also make it less likely that Dodik himself would be targeted
for prosecution.
Even Though They Are Still Needed
---------------------------------
¶6. (C) The mandate of international judges, prosecutors, and
investigators assigned to the State Prosecutor's Office and
State Court -- for war crimes and organized crime -- is
currently scheduled to end by December 2009. The program has
been critical to our efforts to build the capacity
state-level judicial institutions, which are only a few years
old. The challenges the State Court and the Prosecutor's
Office still face, particularly the regular attempts by Dodik
and others to undermine them, have forced us to re-examine
assumptions about when to terminate the secondee program. We
now believe that having the secondees depart in 2009 as
scheduled would be a mistake and would put at serious risk
our progress to date. The EC Delegation shares our
SARAJEVO 00000747 003 OF 004
assessment and is already working with us on a strategy for
partnering with state-level judicial institutions to maintain
the secondee program until 2011. This would get us past the
2010 general election, which hopefully will result in an
improved political climate. It will also allow the new heads
of the State Court and the State Prosecutor's Office time to
take full advantage of international assistance as they
transition to a purely national staff. The Acting State
Prosecutor Barasin (Serb) and State Court President Kreso
(Bosniak) also want to the secondee program extended. HJPC
President Branko Peric (Serb) is more ambivalent. The
Ambassador and EC Ambassador held preliminary discussions
about the issue with all three individuals on April 21.
(Note: The National Strategy for War Crimes, the adoption of
which is a PIC objective, will very likely recommend
maintaining an international presence in state-level judicial
institutions. End Note)
The RS and the National Justice Sector Strategy
--------------------------------------------- --
¶7. (C) The RS has obstructed efforts to adopt the National
Justice Sector Reform Strategy, one of the Peace
Implementation Council's (PIC) three rule of law benchmarks
for closure of the Office of the High Representative (OHR).
State Ministry of Justice (MoJ) officials had hoped that the
strategy would have been adopted by the four governments by
last December (Ref A). The RS government initially agreed to
endorse the strategy after its demands to set aside
recommendations for creation of a Supreme Court, creation of
single, state-level criminal and criminal procedural codes,
and creation of a single judicial budget were accepted.
However, in the wake of the crisis over the HighRep's October
19 impositions the RS Ministry of Justice ceased
participating in the working group charged with drafting the
strategy, effectively preventing the process from moving
forward. The RS government subsequently forwarded a written
demand to the working group that the "place and role of the
HJPC should be analyzed within the discussion of
constitutional changes, both from the aspect of the
government levels and separation of the HJPC into High
Judicial and Prosecutorial Councils" (i.e., having two
councils, one for judges, one for prosecutors, rather than
one for both judges and prosecutors). In addition to
signaling that it now sees the National Justice Sector Reform
Strategy as a vehicle for opening the issue of whether the
HJPC should continue to exist, the RS proposed additional
changes to the document walking-back even the minimal reforms
to which it had previously agreed.
Comment
-------
¶8. (C) The creation of and our subsequent capacity building
support for Bosnia's state-level judicial institutions have
been a crucial element of our efforts to lock Bosnia onto a
self-sustaining path towards Euro-Atlantic integration.
These efforts are being threatened by Dodik's campaign to
reclaim state competencies, rhetorical attacks on the
judiciary and obstruction of the National Justice Sector
Reform Strategy. We anticipate Dodik and the RS will take an
obstructionist approach to the National War Crimes Strategy,
another PIC objective, as well. Dodik's actions threaten
more than judicial reform. His assertions of anti-Serb bias
at the State Court and the State Prosecutor's office fuel
ethnic tensions and undermine the rule of law in Bosnia.
These attacks are undoubtedly part of Dodik's long-standing
campaign to strengthen RS institutions at the expense of the
Bosnian state, but Dodik may also be motivated by awareness
that he may himself soon face corruption charges at the State
Court. We will continue to speak out about the critical
contributions made by the judiciary. However, we remain
concerned that once international secondees depart
state-level judicial institutions and OHR closes, it will be
difficult for the fledgling judiciary to withstand Dodik's
attempts to dismantle it. We plan to continue raising the
need to support the judiciary in conversations with key
officials and politicians, while we work to ensure that the
SARAJEVO 00000747 004 OF 004
PIC objectives are implemented in a manner consistent with
our broader state-building goals.
ENGLISH